Croll involved a father’s request for the return of his daughter to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction. The 2d Circuit denied the father’s request on the grounds that the original Hong Kong custody order only gave him “rights of access”, not “rights of custody” for the breach of which the Convention would mandate a return. The majority was unpersuaded by the father’s argument that the custody order’s ne exeat clause–requiring the father (or the court) to approve any removal of the daughter from Hong Kong–converted his access rights into the custody rights protected by the Convention. The majority reached this interpretation after invoking Article 31 of the VCLT and focusing its effort on discerning the “ordinary meaning” of the Convention’s custodial rights by consulting “(A) the purpose and design of the Convention, (B) its wording, (C) the intent of its drafters, and (D) caselaw in other signatory states.”

Judge Sotomayor dissented because she read the ne exeat clause to give the father custodial rights protected by the Convention. In doing so, Sotomayor did not dispute the majority’s use of the VCLT, but rather critiqued how they applied its interpretative standards to the Hague Convention:

The critical interpretive challenge in this case involves the definition of “rights of custody” as used in the Convention. The majority begins this undertaking by surveying a host of American dictionaries to support its “intuition that custody is something other and more than a negative right or veto” . . . Relying on these sources, the majority finds that the “custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.” . . . While traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty also requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the “ordinary meaning to be given to the terms of the treaty in their context and in the light of [the Convention’s] object and purpose.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 31.1, 1155 U.N.T.S. 331, 340 (stating general rule on the interpretation of treaties); see also Restatement (Third) of Foreign Relations Law § 325 (1987) (same).

Contrary to the majority’s position that “[n]othing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody,” . . . the Convention and its official history reflect a notably more expansive conception of custody rights. The report containing the official history and commentary on the Convention clarifies that “the intention [of the Convention] is to protect all the ways in which custody of children can be exercised.” Elisa Pérez-Vera, Explanatory Report to the Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, para. 71 (1980) (emphasis in original) (“Pérez-Vera Report”). This broad notion of custody rights is also consistent with Article 3, which provides that “rights of custody” may arise from a variety of sources, including by “operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of [the child’s country of habitual residence].” Hague Convention, art. 3, 51 Fed. Reg. at 10,498. In this way, the Convention plainly favors “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Pérez-Vera Report, para. 67. Consequently, in determining whether the rights arising under a ne exeat clause constitute “rights of custody” under the Convention, I discern an intent of inclusion rather than exclusion, so as to effectuate the drafters’ goal of making the treaty applicable to all possible cases of wrongful removal.

At least in her treaty interpretation, therefore, Sotomayor seems to favor an internationalist perspective. What kind of internationalist is a more open question. Her emphasis on the Convention’s overall goals might suggest she favors the teleological school of treaty interpretation. But I don’t think that would be an accurate assessment of her views. The dissent grounds her interpretation in the treaty’s text and its official negotiating records:

Although the treaty does not generally define its legal terms, see Pérez-Vera Report, para. 83, the risk that “an incorrect interpretation of [custody and access rights] would … compromis[e] the Convention’s objects” led the drafters to include Article 5, which offers further guidance on the meaning of the term “rights of custody.” See Pérez-Vera Report, para. 83. I note, however, that the provision was left deliberately vague due to the drafters’ failure to agree on a more precise definition. See Pérez-Vera Report, para. 84 (“[S]ince all efforts to define custody rights in regard to [particular situations] failed, one has to rest content with the general description given [in the text].”). Article 5 provides that:

For the purposes of this Convention-

(a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; …

Hague Convention, art. 5, 51 Fed. Reg. 10,498 (emphasis added); see also Pérez-Vera Report, para. 84 (noting that under Article 5, “rights of custody” include those rights relating to the care of the child, and that the Convention seeks to clarify this otherwise general definition “by emphasizing, as an example of the ‘care’ referred to, the right to determine the child’s place of residence.”). As I interpret the Convention, rights arising under a ne exeat clause include the “right to determine the child’s place of residence” because the clause provides a parent with decisionmaking authority regarding a child’s international relocation. Thus the ne exeat clause vests both Mr. Croll and the Hong Kong court with “rights of custody” for the purposes of the Convention.

Sotomayor also counter’s the majority’s characterization of the drafter’s intent. In doing so, she demonstrates a solicitude for foreign law:

While not essential to my conclusion that ne exeat rights constitute “rights of custody” under the Convention, I note that my analysis is consistent with the decisions of most foreign courts to consider the issue. See generally Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (in construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.”) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978)). Given the desirability of uniformity in treaty interpretation, see Denby v. Seaboard World Airlines, Inc., 737 F.2d 172, 176 n. 5 (2d Cir.1984), these cases lend support to my understanding of the Convention.

Nor is Sotomayor the sort who cites only the foreign law that favors her view — her dissent covers both the English, Australian and Israeli positions that favor her interpretation, while distinguishing and critiquing the French and Canadian positions that do not.

Now, what we don’t know is whether her interest in foreign law is limited to cases of treaty interpretation. After all, Justice Scalia himself is one of the present Court’s biggest proponents of looking to foreign law for statutory interpretation (at least if the case involves commercial interests). So, while I think the Croll dissent is interesting for Sotomayor’s approach to treaty interpretation, I’m more cautious about how to read her invocations of foreign law. I wonder whether her method would extend to constitutional questions, or, like Justice Scalia, draw a sharp distinction between the two. At a minimum, though, Croll suggests Sotomayor is unafraid of the VCLT and is willing to consider the international and foreign law dimensions of treaty interpretation.

Finally, it’s worth noting how relevant all of this may be in the short term. Although the Court denied cert. in Croll, in the case of Abott v. Abott, the Fifth Circuit recently took a more expansive view of ne exeat rights consistent with Judge Sotomayor’s Croll dissent. Last month, the Solicitor General recommended the Court grant cert. for Abbott given the circuit split. If granted, that would likely bring Abott before the Court next term. And, if that Court includes, as is widely expected, a “Justice” Sotomayor, it seems likely her dissent in Croll would predict her views on both the specific Hague Convention question as well as any larger pronouncements about treaty interpretation and foreign law in the U.S. legal system.

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[…] Opinio Juris » Blog Archive » Sotomayor on Treaties and Foreign LawAfter all, Justice Scalia himself is one of the present Court’s biggest proponents of looking to foreign law for statutory interpretation (at least if the case involves commercial interests). So, while I think the Croll dissent is … […]

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